Houg v. Girard Lumber Co.

MaRshali, J. The judgment must be reversed for three reasons. Each involves the sufficiency of the evidence to support some vital part of the verdict. In condemning the result as to each such feature, we keep in mind that this court should not disturb the verdict of a jury as contrary to the evidence, if there is any evidence, which, in any reasonable view, will sustain it; and also appreciating the force which should be given to this other rule: in case a trial court on motion to set aside a verdict as contrary to the evidence approves it, his judgment should not be overruled unless clearly wrong. But in reaching our conclusion we have also to appreciate that the manner of an occurrence as testified to from the mouths of witnesses is not necessarily to be taken as matter of fact even if not in like manner contradicted. Sometimes physical situations and impossibilities speak much more weightily than the vocal utterances of any witness, or number of witnesses. The former cannot falsify. The latter can and often do. The one is indisputable. The other never is. The jury found that the shaft with the unguarded set-screw was so located as to be dangerous to employees of the defend — 346 — ant in the discharge of their duties. Why so ? It was entirely out of reach of any of the employees in the discharge of their duties. It will be seen by the statement that the way of reaching it was by ascending eleven feet from the basement floor. There was no occasion for going near it except to oil •the bearing of the sprocket wheel shaft. In that, there was-no occasion for any part of an employee’s person or clothing' coming in contact with the shaft where it was armed with the’ set-screw. Really, it was not possible to do*so without actually invading the region some six inches beyond the oil cup on the journal box, which no-one, it -seems, -could.-reasonably be expected to do. An operator had, actually, to go outside any course which any one would reasonably be expected to take, as-respondent in fact did, in order to reach the uncovered setscrew. The evidence leaves no doubt but what no one would have supposed an employee would attempt what respondent did, — climb around on the narrow timber supporting the end; of the sprocket wheel shaft, cling by one hand-hold and one-foot-hold to the tightener frame, with his person hanging, as it were, out over the sprocket chain; then climb down over the chain, placing the feet on the cross-piece of the tightener frame, the rapidly moving chain coming just over the top of the feet, making it necessary to keep hold of some support with both hands to avoid danger of severe injury; then work along by the aid of hand-holds, in an endeavor to pass around the sawdust spout and get a footing on the uneven surface of the timber in the vicinity of the uncovered set-screw, or gain such footing as a prelude to stepping back to the plank with the idea of groping along it by the end of the sprocket wheel shaft to the other tightener frame. If there be anything in the evidence suggesting, reasonably, that appellant was chargeable with knowledge of any likelihood that an employee would do so, or get into dangerous proximity to the set-screw, we are unable to find it. He got there, as said before, by going out of the ordinary way, choosing to do his work in a different — 347 — way from the customary one; a way which he discovered and arranged to suit himself. The case is ruled, as counsel for appellant contend, by the doctrine that the statute and the common-law rule as well, respecting the guarding of machinery so located as to be dangerous to employees in the discharge of their duties, do not apply to a situation where the employee must, necessarily, go out of any way which he would be reasonably expected to take in order to reach it. Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Miller v. Kimberly & Clark Co. 137 Wis. 138, 118 N. W. 536. The foregoing, while condemning the finding of negligence in not guarding the set-screw region of the shaft, logically also condemns the finding that plaintiff was not guilty of any want of ordinary care contributing to his injury. It seems that his conduct invited the disaster which happened to him. He subjected himself to many serious dangers, from the time he made the first step from the plank to the tightener frame till he put his foot, or caused it to go, between the jaws formed by the sprocket wheel and chain. His conduct was specially negligent in that he departed from his previously used but dangerous way of reaching the west tightener frame by trying to contend with the sprocket wheel shaft and its connections, the timber loaded with frozen sawdust, the interfering sawdust spouts, and the narrow plank suspended high above the basement floor, — in attempting to go by a short cut from the east to the west tightener frame. Can one without feeling a sense of shock at the very temerity of it, contemplate the picture found in the statement of facts of respondent for a moment before and at the instant of the accident? See him partly hanging to the east tightener frame by one hand and to the sawdust spout with the other, his left foot just under, and leg close up to, the moving sprocket chain, just the toe of one foot reaching under the chain far enough to obtain a rest on the cross-piece of the tightener frame, his right foot out and — 348 — ■around tbe sawdust spout; out to tbe top oí: tbe timber beyond tbe spout, bis line of vision naturally directed away from tbat foot, and bis dependency being upon sense of touch to obtain a safe lodgment for tbe foot on tbe sawdust covered timber. •See bim as, balf clinging by bis bands and arms, be feels for a footing at bis right till bis foot slips in on tbe sprocket chain dose to tbe sprocket wheel and is instantly caught between tbe two. Does not tbe whole proceeding appear to have been •almost foolhardy, when we consider tbat tbe ordinary way of approaching tbe tightener frames was from tbe opposite side, thus avoiding all tbe dangers which caused tbe injury, and tbat respondent chose to depart from bis own customary and ■dangerous way to one very much more hazardous ? Was be not negligent to tbe point of rashness, in view of the fact tbat be bad been instructed to approach tbe tighteners from tbe south side and would have done so bad it not been for tbe interference from tbe sawdust spout, which be could easily have remedied himself. Quite as difficult, as in tbe respects we have treated, we find it to justify tbe finding tbat tbe set-screw did tbe injury to respondent’s foot. At tbe best tbe evidence does not more than warrant tbe merest conjecture tbat tbe set-screw reached tbe foot which was injured. No amount of conjecture or weight •of mere possibility can support a verdict in a plaintiff’s favor. It must not be forgotten tbat reasonable certainty, at least, must be established in plaintiff’s favor in a case of this sort, as well as in any other, to warrant a recovery. Eirst we have tbe fact tbat respondent’s foot blocked tbe sprocket wheel so it stopped. Therefore tbe testimony tbat tbe set-screw continued to revolve after tbe foot engaged tbe wheel must be false. Motion of tbe wheel necessarily ceased, and tbat of tbe set-screw too, as soon as tbe man’s foot was caught between tbe. wheel and tbe chain, otherwise bis leg would have been wound around it and crushed, as be admitted in bis testimony. So tbe injury to tbe foot must have been done by tbe time tbe wheel ceased to revolve. Tbe idea of tbe — 349 — set-screw going around thereafter is too preposterous to be worthy of a moment’s consideration. Again, respondent said the set-screw gouged his foot down from the instep to his toes. Opposed to that is not only the fact that the wheel and the setscrew must have ceased to revolve as soon as the foot was caught, since otherwise the leg would have been crushed, but the location of the wound was not from the instep downward to the toes, but across the instep, just where it would naturally be if the foot were caught between the sprocket wheel and the chain and rolled partly under it and thereby crushed and wounded. Again, with the foot between the sprocket wheel and the chain, as the evidence strongly tends to, if it does not conclusively, show, and we are not prepared to say it does not, and as respondent insisted it was to some extent at least, — it was not possible for the screw to reach the foot. There was no room for the foot to get under the collar because it was revolving in a cut-out place in the timber. It was also physically impossible for the foot to have been under the shaft, between the timber and the sprocket wheel. The foot, as it slipped in between the sprocket wheel and chain, must have gone in substantially at right angles, as respondent several times substantially testified. In no other way could it have gotten into the machinery and stopped it. Any other theory would be worse than speculation as to mere possibility. In no other way could the wound have been made across the instep, since the set-screw did not go in reach of the foot. Moreover, when he was found by those who released him, the setscrew was pointing upward. That must have been its position when the sprocket wheel was blocked by the foot because all motion, as stated, must have ceased at that instant. In the position respondent’s body was, his foot could not have been turned lengthways of the south edge of the timber and just over such edge so as to have been drawn under the collar or shaft, if there was a place there, which would have permitted it to have been drawn in. The testimony of the witness called to corroborate plaintiff — 350 — was self-destructive so far as it was to tbe effect that the foot was caught under the shaft. He contradicted respondent as to taking the top off the journal box and lifting up the end of the shaft, and the incredible story of respondent as to his having reached and pushed his foot down and out. The witness •and others, as he said, we must remember, put a lever under the shaft and “sprung her up a little,” “gave it a little slack,” then worked the foot out while respondent “hung to the frame or something.” When we think of the short two-inch shaft running in a box, which we must assume was in fair condition, we can comprehend, at once, that the idea that they “sprung her a little,” was a mere picture of the witness’s imagination, •or something worse. He testified to a physical impossibility. His words, “gave it a little slack,” are the key to what was done. The only thing they could have given a “little slack” to was the sprocket chain. A “little slack” does not describe any movement that would have been required to get respondent’s foot out from under the shaft, if it were possible for it to be there. Give it “a little slack” fittingly characterizes loosening of the sprocket chain. Rolling the wheel back slightly was the only practicable way to release the foot if ■caught between the wheel and the chain. “Pried her up,” under the circumstances, in connection with the fact that the shaft was tight in the journal box, with “give it a little slack,” tells the only true story it seems, i. e. they put the end of the lever under one of the projections of the sprocket wheel and against the timber or something for a fulcrum, or against the ■shaft on the south side of the wheel, and from there against the end of a link in the interval between two links at the side, •or in some other way obtained a leverage by means of which they turned back the wheel sufficiently to “give it,” the chain, “a little slack,” and then, as the witness said, “they worked his foot out by hand.” We note that the evidence does not indicate what kind of a lever was used. It might have been a bar of iron permitting of giving the chain a little slack in the — 351 — way suggested. ,We do not overlook the fact that the witness ■spoke of tbe lever as a “handspike,” but that does not indicate ■but wbat it might have been of iron or in such form as to permit of the use indicated. Respondent must have been hanging onto something while he was being released, as the witness ■said, in-order to support himself. That something must have been the sawdust spout. Doubtless, as he testified at one point, he was so excited he could not remember just how the ■accident occurred or how he was released. It was simply impossible for him to have leaned down, as he said he did, and with both hands taken hold of his foot and crowded it down between the sprocket wheel and the timber. He could not have kept his place on the timber while making such a movement. Moreover there was no place, as we have seen, for his foot to be so crowded down and out. The gouged-out space was occupied by the collar, allowing the rim of the wheel to come within about two inches of the timber. Is not that plain when the whole situation is comprehended. Again, crowding the foot down and out was impossible since it was caught at some point between the wheel and chain requiring the latter to be given “a little slack.” On the whole, it seems clear that the injury was not caused by the projecting set-screw. Too bad, we fully appreciate, the unfortunate plaintiff must irreparably bear his loss. • The law does not deal in charity, merely taking from one who will not suffer much by the deprivation, and giving to another who will otherwise seriously suffer. It does not judicially punish ■one for the benefit of another whom he has not wronged, however much that other may need the assistance. It takes from ■one who commits a wrong to another’s loss, giving the net of that which is taken to that other, not considering any loss for which the one is not responsible, nor any loss for which such ■other is himself responsible. By the Court. — The judgment is reversed, and the cause remanded with directions to render judgment for defendant. — 352 — Maeshall, J. {speaJdng independently). As tbe writer rests from speaking the foregoing for the court, may he not, appropriately and beneficially, soliloquize briefly upon the law’s uncharitableness with distressing losses like that here-treated. Why not such inevitable incidents of activities upon which all depend to satisfy demands of legitimate human desire, be-laid at once upon the subjects of consumption where they must in the end inevitably go for final liquidation ? .Why not with a minimum of anguish instead of with the maximum thereof ?' Is it not for the whole, indirectly toiled for but removed in general from the zone of danger as well as those who present-their bodies to the peril, that the latter be so ? If so, why should an element as to either, involving no moral turpitude,, be the deciding factor as to whether the one or the other shall be irreparably impaired? And moreover, why irreparably impaired at all, crushing human ambition, human hope, and human life as well ? Why should not the sacrifices for all betaken at once as the burdens of all; not scattering by the way human wrecks to float as derelicts .for a time, increasing the-first cost till the accumulation disappears from view in the world of consumable things ? Such losses, starting immediate victims, — particularly the weakest and humblest and often. the most indispensable of them to a lower level, — go on by trackless ways till, enhanced by transition over the long road, the whole, disseminated so broadly as to be at last unappre-ciable, comes to rest as noiselessly, imperceptibly, and certainly as moves the “breath of the summer night,” — upon and is absorbed in, increasing the costs of subjects of human desire, there to be accounted for at the full money equivalent by the exchanges incident to consumption. Is not this a verity ?' Why then cannot such inevitable end occur without the added loss and arbitrary classification by which the majority of those-who feel the misfortune most deeply, are not compensated at — 353 — all, and the rest only by transfer in each instance to one engaged with the bodily sufferer in mutuality of general purpose and mutuality of risk from inadvertences which can only be minimized according to the degree of natural infirmities of the mutual actor ? The courts cannot answer. They do not make the law. They only execute it, and must do that with fidelity and with care without sympathy or fear or favor. Only the lawmaking power can answer. At its door lies the duty to do so, and will lie any sin there may be in not laboring to that end. To there in increasing volume points and will continue to point unrequited sorrow till there shall be a remedy. If these words shall help to render humanity’s petition effective they will not have been spoken in vain.